Safe Havens

(E)  Qualifying Types of Relief.  Any form of state rehabilitative relief that is substantially similar to relief under the FFOA will be held sufficient in the Ninth Circuit to eliminate all effects of a conviction of any of the qualifying offenses listed above.  For example, in California, this includes an expungement under California Penal Code § 1203.4(a) after successful completion or early termination of probation, a dismissal after successful completion of Deferred Entry of Judgment, pursuant to California Penal Code § 1000, and dismissal of the conviction after successful completion of a drug treatment program pursuant to Proposition 36, which prohibits incarceration for certain first offense drug convictions.[213]  If the state procedure is substantially similar to the FFOA, in that it requires the defendant to be found guilty of a qualifying offense, and provides for dismissal of the charges upon successful completion of a probationary or similar period of rehabilitation, then the Ninth Circuit recognizes Equal Protection requires the courts to accord it the same effect as would be required for a federal conviction under the FFOA.

            The Board of Immigration Appeals has held in two recent non-precedent decisions that actual expungement of a first offense conviction of possession of a controlled substances is not required, before removal proceedings will be terminated, because Lujan and Manrique suggest that a conviction does not constitute a deportable controlled substances conviction if the respondent would have been eligible for treatment under the Federal First Offender Act if prosecuted in federal court, even if a state expungement has not yet actually been obtained and the defendant remains on probation.[214]

[213] California Penal Code § 1210.

[214] Matter of Vallesteros, 2004 WL 1739143 (BIA June 29, 2004) (non-precedent decision); Matter of Ceredon, 2004 WL 1739162 (BIA June 29, 2004) (non-precedent decision).